Meediavabaduse reguleerimine – allikakaitse ja vastulause õigus

Date

2009

Journal Title

Journal ISSN

Volume Title

Publisher

Tartu Ülikool

Abstract

Description

Regulating Media Freedom: Protection of Journalistic Sources and Right of Reply The present research paper comprises of two articles: „Media freedom and the protection of journalistic sources“ and „Individual versus the mass media: right of reply.“ These articles have been previously published in Juridica, Estonian magazine of jurisprudence. General introduction has been added, in order to produce framework of the conceptions and basic law rationales underlying media freedom to free speech, and in connection with the communication theory. Theoretical conceptions discussed include conception of publicity, critical propaganda model, gatekeepers’ theory, general mass communications theory and conceptions of constitutional law. The latter is discussed from the perspective of continental approach, including ECHR jurisprudence and Estonian laws, adding some comparative aspects related to the common law rationales of free speech. The main argument of the thesis is that individual speech rights must not be granted to the mass media on the equity bases. Instead, some differentiated privileges should be granted and special obligations applied. Protection of journalistic sources and the right of reply are the two examples of differentiated regulations on media freedom – an example of a privilege and an example of an anti-privilege. Those exceptions of the general free speech right are in accordance with the press freedom in a positive sense, which is not just another liberal right granted to the press, but include special duties and responsibilities, thus supporting media accountability and creating favourable conditions for serving the public interest. Freedom of the Press and Protection of Sources. The protection of confidential or secret media sources is a guarantee for the freedom of the media, which has its constitutional foundation in the freedom of the written word and information. The general aim of protecting sources could be considered to be informing the public of important state and social issues, as well as public control over the execution of public authority. Protection of sources is not an unrestricted right. The limit is set by the legal rights that are listed in the clause restricting freedom of expression, primarily the interest of administration of justice, which could require the disclosure of the source if it is necessary for determining the truth in a serious criminal matter. In guaranteeing the protection of sources there is an accompanying danger of misusing this right, which is expressed in the inability to check a confidential source, and in the reduction in the objectivity of the information. Through his analysis of the regulation of protection of sources in Estonia, the author takes the position that protection of sources in Estonia is not in accordance with the Constitution and European standards. The laws on judicial proceedings should stipulate the obligation to disclose confidential media sources, and the bases and procedures for clarifying these sources in other ways. In future changes to the laws on proceedings it is important that the possibilities for electronic surveillance be taken into account, and that these are balanced with appropriate measures, so that the legal protection of sources could fulfil its objective in the current media environment. The Position of Individuals in Relation to the Media and the Right of Reply. In general, if false information about a person is published in the media or a personal attack is made, the victim may bring a claim before a court in order to protect his or her rights. Personality rights such as the protection of honour, dignity and a person’s good name, the inviolability of private life and a person’s right to their image can be protected in Estonia through civil proceedings. It is quite another question whether lengthy court proceedings are in fact the best way to guarantee personality rights infringed by the media, if one takes into account the interests of public communication. The media operates independently and therefore even if a judgment is handed down in a case, it may not significantly influence public opinion. The same holds true for misuse of personal information. On the other hand, one has to consider that harsh penalties prescribed by law or court judgments awarding large amounts in damages may keep media publications in line, but they may also lead to a tendency to avoid addressing sensitive topics (chilling effect) This compromises the freedom of public communication and the role of the media in democratic society.

Keywords

H Social Sciences (General), magistritööd

Citation